If employee tacks on emotional distress claim, you can ask for medical records — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

If employee tacks on emotional distress claim, you can ask for medical records

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Employees and their attorneys often add additional claims to a main discrimination claim as a way to up the ante and push for bigger settlements or larger verdicts.

One of those additional claims is often for “intentional infliction of emotional distress.” The employee claims he was so hurt by the alleged discrimination that it caused mental health problems.

Before you agree to settle a case involving an emotional distress claim, push to discover whether the supposed damage is legitimate. Your attorneys can insist the employee answer pointed questions, subpoena and depose therapists and demand access to medical records.

One of two things will likely happen if you push for more information. Either the employee will back down because there’s no real proof of mental distress, or you will learn how severe the actual damage was.

Recent case: Gerald Eckhardt uses a wheelchair because he became a paraplegic following an automobile accident. His employer, the Bank of America, terminated him in what it said was a reduction in force. But Eckhardt saw things differently. He claimed that he had been singled out because of his disability.

Eckhardt sued, alleging that his former employer violated the ADA and North Carolina common law. He said the bank was guilty of intentional infliction of emotional distress.

The bank demanded proof, including access to his medical records, his testimony and his therapist’s testimony. The court agreed the bank could get all that information, plus have Eckhardt examined by its own psychological expert. (Eckhardt v. Bank of America, No. 3:06-CV-512, WD NC, 2008)

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